Stewart v Police - [2019] NZHC 2086

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-433

[2019] NZHC 2086

BETWEEN
MELVIN DOUGLAS STEWART

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 July 2019

Appearances:

A Speed for the Appellant

D Wiseman for the Respondent

Judgment:

23 August 2019

JUDGMENT OF DUFFY J

This judgment was delivered by me on 23 August 2019 at 3.30 pm.

Registrar/ Deputy Registrar

Solicitors/Counsel:
Andrew Speed, Barrister, Auckland Meredith Connell, Auckland

STEWART v NEW ZEALAND POLICE [2019] NZHC 2086 [23 August 2019]

[1] On 10 June 2019 I delivered an interim judgment in this appeal, which partly determined the procedural basis on which Mr Stuart brings this appeal.1 This judgment should be read together with that judgment.

[2] In the interim judgment I found that the decision of Judge Taumaunu, which is the subject of this appeal, was not made pursuant to s 147 of the Criminal Procedure Act 2011 (CPA), and for this reason I rejected the respondent’s argument the decision could not be the subject of a pre-trial appeal.

[3] I considered the decision under challenge was the determination of an application by Mr Stewart for the exercise of the District Court’s inherent power to control its process, the complaint being that the amended charge was a nullity or an abuse of process. Whether there could be a substituted charge in this circumstance appeared to me to raise a question of law relating to the determination of the charge. As such it was properly appealable under s 296 of the CPA.2 However, because the respondent had not addressed this issue rather than deal with it in the interim judgment I left the matter open for the parties to address at the resumed hearing. When the appeal resumed before me the parties were agreed the decision was properly the subject of appeal under s 296 of the CPA. This disposed of the concerns regarding jurisdiction.

[4] Accordingly, I now deal with the substantive argument raised by Mr Stewart, which raises the legal question of whether a charge that is now time-barred, and therefore unable to be laid against Mr Stewart at first instance can nevertheless be substituted for the earlier charge he faced.

Alleged facts

[5] At about 12:20 pm on 31 December 2016, Mr Stewart was stopped at the traffic light at the intersection between Victoria Street East and Queen Street in Auckland Central. The victim was in front of him, also in his vehicle.

1 Stewart v Police [2019] NZHC 1294.
2 See s 296 (3)(a) of the Criminal Procedure Act 2011; in Linfox Logistics (NZ) Ltd v Worksafe New Zealand [2018] NZHC 583 Woolford J found that a right of appeal exists under s 296(3)(a) from a decision pre-trial to permit the amendment of a charge.

[6] When the light went green, the victim did not move forward as anticipated. Mr Stewart honked his horn at the victim, who proceeded slowly through the intersection. Mr Stewart…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 2086
Decision Date: 23 August 2019

CaseChat Overview and Summary

The case of Stewart v Police was heard in the High Court of New Zealand, Auckland Registry, involving an appeal by Melvin Douglas Stewart against the decision of the District Court judge, which was challenged on the basis of being a nullity or an abuse of process. The court needed to determine whether a charge that is time-barred, and therefore unable to be laid against the appellant at first instance, could nevertheless be substituted for the earlier charge he faced. The Crown relied on Section 133 of the Criminal Procedure Act 2011, which allows for a charge to be amended by the court at any stage before the delivery of the verdict or decision of the court.

The court examined the legal framework governing the substitution of charges, including the provisions of Section 25 of the Criminal Procedure Act 2011, which sets out the time limits for filing charging documents in respect of various offences. The court also considered the remarks of Courtney J in McQuillan v Police, which emphasized the appropriateness of amending a charging document where there is no prejudice to the defendant. However, the court found that the substitution of a charge to a less serious one does not necessarily mandate that the substituted charge be more serious than the original charge.

In reaching its decision, the court referred to the case of R v Holt, where the Court of Appeal endorsed a contextual inquiry to determine whether it is in the interests of justice to allow the amendment of a charge after the limitation period has expired. The court also drew on the decision in Cunningham v Police, which held that the court will not permit the amendment procedure to circumvent the operation of limitation clauses in the criminal jurisdiction.

In the present case, the court found that the substituted charge of dangerous driving was much broader than the original charge of common assault, and that the amendment of the charge would alter the very substance of the charge the appellant now faces, which is prejudicial to the appellant. The court concluded that the interests of justice did not support allowing the amendment of the original charge, and that the District Court judge had erred in the exercise of his discretion by failing to apply the correct legal principles.

As a result, the court allowed the appeal and stayed the prosecution on the ground that the dangerous driving charge could not be brought against the appellant. The decision highlights the importance of adhering to statutory time limits for filing charges and the need for courts to carefully consider the interests of justice when determining whether to permit the amendment of a charge after the limitation period has expired.

Orders